Airline Workers Ask Appeals Courts to Invalidate Union Dues Opt-Out Schemes
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2020 edition. To view other editions or to sign up for a free subscription, click here.
Cases challenge requirement that workers opt out of union political spending or else pay full dues
Just “plane” wrong: United Airlines fleet service employee Arthur Baisley (left) and JetBlue Airways pilot Christian Popp (right) are fighting to end schemes that deduct union political expenses out of workers’ paychecks without their consent.
NEW ORLEANS, LA – With free legal representation from National Right to Work Legal Defense Foundation staff attorneys, two airline workers have filed cases challenging union boss policies that require workers to opt out in order to exercise their First Amendment right not to fund union political activities, as recognized in the Foundation-argued 2018 Janus v. AFSCME Supreme Court decision.
The two federal class-action lawsuits were brought for United Airlines fleet service employee Arthur Baisley and JetBlue Airways pilot Christian Popp. They are currently pending in the U.S. Courts of Appeals for the Fifth and Eleventh Circuits respectively.
Workers Challenge Compelled Political Speech
Baisley’s case against the International Association of Machinists (IAM) union has been fully briefed and is tentatively set for oral argument the week of November 30. Meanwhile, the opening brief for Popp’s case against the Air Line Pilots Association (ALPA) union was filed in early October.
The lawsuits contend that under Janus and the 2012 Knox v. SEIU Supreme Court cases — both argued and won by Foundation staff attorneys — no union dues or fees can be charged for union political activities without a worker’s affirmative consent.
Despite this, union officials at the IAM and ALPA enforce complicated opt-out policies that require workers to object to funding union political activities or else pay full union dues. Foundation staff attorneys argue that the Janus decision’s opt-in requirement applies to airline and railroad employees covered by the Railway Labor Act (RLA), taken together with longstanding precedent protecting private sector workers from being required to pay for union political and ideological activities.
Mr. Baisley and Mr. Popp both work in Right to Work states (Texas and Florida, respectively), but the RLA preempts state law. Consequently, they can be forced to pay union dues or fees or be fired. Even under the RLA, however, union bosses cannot legally force workers to pay for political activities.
Cases Could Expand Janus Protections to Private Sector
The lawsuits argue IAM and ALPA’s opt-out policies are designed to trap unwilling participants into full dues in violation of their First Amendment rights. This forces workers to subsidize union political activities against their will, including the part of full dues that union officials use to support their radical political agenda and handpicked candidates for office.
“IAM and ALPA union officials have demonstrated a blatant disregard for the rights of the very workers they claim to represent by creating complicated obstacles for independent-minded workers who want to exercise their right not to fund union ideological activities,” said National Right to Work Foundation Vice President Patrick Semmens. “Although Janus’ biggest impact was to secure the First Amendment rights of all public employees across the nation not to be required to fund Big Labor, these cases demonstrate that Janus’ implications can also protect the rights of private sector workers.”
Cases Seeking Millions in Refunds of Forced Fees under Janus Move Forward
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2020 edition. To view other editions or to sign up for a free subscription, click here.
Split Appeals Court decision bolsters petition for Supreme Court to take up issue
Veteran Foundation staff attorney William Messenger made history when he argued and won the Janus case before the High Court in 2018. He still represents Janus and others demanding forced-fee refunds.
PHILADELPHIA, PA – A National Right to Work Foundation-backed class-action lawsuit for Pennsylvania state employees seeking refunds of unconstitutionally seized union fees resulted in a split decision from the U.S. Third Circuit Court of Appeals in August. This ruling cast serious doubt on a favorite union boss argument used to avoid refunding dues seized in violation of workers’ First Amendment rights.
The employees were defending their rights under the landmark 2018 Foundation-won Janus v. AFSCME Supreme Court ruling. In Janus, the Court sided with former Illinois child support specialist Mark Janus and agreed with Foundation staff attorneys that requiring any public sector worker to pay union dues or fees as a condition of employment is a First Amendment violation. The Court also ruled that union dues can only be taken from public servants with their affirmative and knowing consent.
The plaintiffs in Wenzig v. Service Employees International Union (SEIU) Local 668 are seeking a ruling that SEIU officials must refund dues taken from employee paychecks in contravention of this standard before the Janus ruling came down. Union bosses used, as they have done in almost all similar cases, a dubious “good faith” argument to justify not refunding the dues to the victimized workers. In the split decision, two of the three judges rejected the so-called “good faith” theory.
Supreme Court Asked to End Lower Court Confusion on Janus Refunds
Foundation staff attorneys cited the growing confusion among federal judges on forced-union-fee refunds as a vital reason the Supreme Court should hear the continuation of Janus v. AFSCME. In a supplemental brief, Foundation attorneys wrote that Wenzig “supports granting review here because a majority of the Third Circuit panel rejected the good faith defense recognized by the Seventh Circuit here and by the Second, Sixth, and Ninth Circuits.”
“The Court should finally resolve this important issue and hold there is no good faith defense to Section 1983,” the brief adds. Section 1983 is the federal law requiring that those who deprive people of their constitutional rights “under color of any statute . . . shall be liable to the party injured.”
This September, Foundation staff attorneys also filed the final reply brief supporting the Supreme Court petition in Casanova v. International Association of Machinists (IAM), Local 701, another case seeking review from the High Court. It also cites the Third Circuit’s split decision. Plaintiff Benito Casanova, a Chicago Transit Authority employee, seeks to get back money that IAM bosses took from his paycheck and the paychecks of his colleagues in violation of their First Amendment rights prior to the Janus decision.
Foundation Leading Worker Efforts to Reclaim Fees Seized Against Janus
The workers in these cases and many others are collectively fighting for millions of dollars in pilfered money to be returned to them. Foundation attorneys currently represent these public servants in nearly 20 similar cases, together pursuing about $130 million in refunds to workers.
“Given the clarity of the Janus First Amendment standard, it’s bewildering that federal judges have not yet widely discredited union boss arguments that serve only to deny public sector workers refunds of money that the High Court itself ruled should have never been taken from them in the first place,” observed National Right to Work Foundation President Mark Mix. “The High Court must swiftly disabuse lower courts of their misunderstandings and provide justice to workers who have been waiting years for their hard-earned money to be returned.”
Ohio Public Workers Axe Illegal Restrictions on Janus Rights for Almost 30,000
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2020 edition. To view other editions or to sign up for a free subscription, click here.
Foundation-backed lawsuit ends AFSCME bosses unlawful “escape period” scheme
Two years after Foundation staff attorneys won Janus, public sector workers continue to cast off the shackles of forced union dues. In Allen, the plaintiffs successfully defended the Janus rights of thousands of Ohio public workers.
COLUMBUS, OH – A lawsuit by four Ohio public employees has secured the end of an illegal dues deduction scheme used by Ohio Civil Service Employees’ Association (OCSEA/AFSCME Council 11) union bosses to block an estimated 28,000 workers from exercising their First Amendment right to stop union dues payments. The workers obtained free legal representation from National Right to Work Foundation staff attorneys in challenging the policy.
The class-action suit, Allen v. AFSCME, challenged OCSEA’s so-called “maintenance of membership” policy, which trapped workers in forced-dues payments except for a brief “escape period” once every three years at the expiration of the union monopoly contract. The workers argued this policy violated their First Amendment rights under the Janus v. AFSCME Supreme Court decision.
In Janus, the High Court struck down mandatory union fees for public sector workers as an infringement of their First Amendment rights, and ruled that the government can only deduct union dues or fees with an individual’s affirmative consent.
After Freeing Workers, Foundation Attorneys Warn of Future Union Boss Tricks
As a result of the lawsuit, OCSEA officials and the State of Ohio have rescinded the “maintenance of membership” restriction on when state workers can exercise their First Amendment right to cut off union dues deductions.
They must also honor requests to stop dues deductions from any employees who signed the AFSCME dues authorization form at issue in the lawsuit. Finally, AFSCME bosses repaid dues seized illegally under the scheme to the plaintiffs and more than 150 other employees who tried to cut off union dues deductions after Janus was decided.
Knowing that union bosses don’t easily give up in their crusades to coerce workers into paying dues, however, Foundation staff attorneys issued a legal notice shortly after the case wrapped up, warning workers that OCSEA union bosses may soon solicit them to sign new dues deduction forms which are not covered by the litigation. The new forms will “purport to restrict” when employees can stop dues, it warns.
In light of that, the notice reminds workers that under Janus, no Ohio public employee can be forced to sign a union dues deduction form as a condition of employment, no matter what union agents may tell them.
Just Latest in String of Ohio Worker Victories over “Escape Periods”
Allen is not the only case in which Ohio public employees have, with National Right to Work Foundation legal aid, successfully challenged union boss attempts to limit their rights.
Seven other Ohio public employees won the first-in-the-nation victory against unconstitutional “escape periods” with Foundation aid in January 2019, after they filed a class-action federal lawsuit challenging a similar policy created by AFSCME Council 8 bosses. They won a settlement ending the restrictions for themselves and their coworkers. That win was followed by two other Ohio public workers, Connie Pennington and Donna Fizer, successfully ending “escape period” restrictions with Foundation assistance later in 2019.
“Although this chain of victories for Buckeye State public employees is certainly encouraging, the widespread nature of these schemes shows there remains much work to do to force union bosses to end their unconstitutional restrictions on public employees’ First Amendment Janus rights,” observed National Right to Work Foundation President Mark Mix. “Foundation litigation has already freed hundreds of thousands of public employees from forced union dues, but likely millions more remain trapped and unable to exercise their rights. That is why Foundation litigators will continue to file these cases.”
In the News: “Foundation Sues to Give Public Employees Their Right Not to Pay Union Dues”
The National Right to Work Foundation-won Janus v. AFSCME U.S. Supreme Court decision allows public employees to stop paying dues or fees to a union at any time they choose. Janus affirmed that the First Amendment protects government workers from supporting a union against their wishes.
But ever since the Janus decision in June 2018, many union bosses have refused to comply with the High Court’s decision. So Foundation staff attorneys have filed dozens of cases across the country to enforce the Janus decision and compel union bosses to respect the First Amendment rights of the workers they claim to “represent.”
Journalist Mark Tapscott recently reported on a number of these cases for The Epoch Times, including a newly filed case for a police officer serving on the front lines in Las Vegas:
Las Vegas Police Officer Melodie DePierro is the latest in a growing line of public sector employees suing in federal court to demand recognition of their rights under a 2018 Supreme Court decision.
DePierro’s action was filed in the U.S. District Court for Nevada against the Las Vegas Metropolitan Police Department (LVMPD) and the local Police Protective Association (PPA) union.
In Janus v American Federation of State, County and Municipal Employees (AFSCME) decided by a 5-4 vote in June 2018, the high court ruled that public sector employees cannot be forced to pay union dues in the form of agency fees without being given a chance to consent or refuse the deduction.
DePierro noted in her suit that the department’s monopoly bargaining agreement with the union only allowed a 20-day window of opportunity to request agency fee refunds and that she had never agreed to the deduction in the first place.
Right-to-Work advocates cheered Janus as a landmark decision that would prompt millions of employees at all levels of government to demand an end to hundreds of millions of dollars in agency fees that helped fund partisan union political activities with which they disagreed.
…
“Instead of respecting her First Amendment Janus rights, PPA union bosses have decided to keep imposing an unconstitutional policy on her just to keep her hard-earned money rolling into their coffers,” NRTWLDF President Mark Mix said in a statement announcing the suit.
“The High Court made perfectly clear in Janus that affirmative consent from employees is required for any dues deductions to occur. Yet PPA union bosses are clearly violating that standard here,” Mix said.
…
A week before the DePierro filing, NRTWLDF attorneys issued a special notice to more than 28,000 Ohio state employees advising them of their right not to pay agency fees. The notice was part of a settlement of the foundation’s suit against the state government and the Ohio Civil Service Employees Association, AFSCME Local 11 (OCSEA).
Other Janus suits currently working their way through the courts include NRTWLDF actions against the Chicago Teachers Union, the Alaska State Employees Association (ASEA), the United Teachers of Los Angeles (UTLA), California Service Employees International Union (SEIU), the University Professional and Technical Employees (UPTE) union and the University of California, and the Township of Ocean Education Association (TOEA), New Jersey Education Association (NJEA) and the National Education Association (NEA) unions. The latter suit has reached a federal appeals court.
Read the entire article online at The Epoch Times here.
National Right to Work Foundation Issues Special Legal Notice for State of Ohio Employees Freed from Illegal OCSEA Union Dues Scheme
Notice explains that workers under OCSEA union power can freely cut off union dues deductions, warns employees against signing away their rights
Columbus, OH (August 6, 2020) – National Right to Work Foundation staff attorneys today issued a special legal notice to State of Ohio employees regarding their First Amendment rights under the Janus v. AFSCME US Supreme Court case. The notice comes after an estimated 28,000 State of Ohio workers were freed of restrictions in exercising those rights as a result of a lawsuit against the Ohio Civil Service Employees Association (OCSEA, AFSCME Council 11) union brought by a group of State of Ohio employees with free legal representation from the National Right to Work Legal Defense Foundation.
The class-action lawsuit Allen v. AFSCME challenged OCSEA’s “maintenance of membership” policy that blocked workers from exercising their right to end union dues deductions except for a brief “escape period” once every three years at the expiration of the union monopoly bargaining contract.
Right to Work attorneys argued that the restriction was unconstitutional under the 2018 Janus v. AFSCME Supreme Court decision, which was argued and won by Foundation staff attorneys. In Janus, the Court struck down mandatory union fees for public sector workers as an infringement of their First Amendment rights. It also ruled that the government can only deduct union dues or fees with an individual’s affirmative consent, including a knowing waiver of their First Amendment right not to fund union activities.
As a result of this lawsuit’s settlement, union officials have given up their attempts to enforce the coercive policy based on union-designed “dues deduction” cards, which Foundation staff attorneys argued failed to meet the standard laid out in Janus. This means approximately 28,000 workers are now free to stop dues at any time.
The full notice is available at https://www.nrtw.org/ohio-janus/.
The notice explains the simple process by which state employees can exercise their right to end dues deductions, complete with sample resignation letters. It also warns employees that OCSEA union bosses may solicit them to sign new dues deduction forms which are not covered by the terms of the settlement. In light of that, the notice reminds workers that under Janus no State of Ohio worker can be forced to sign a union dues deduction form as a condition of employment, no matter what union agents may tell them.
“OCSEA intends to solicit employees to sign new membership and dues deduction cards that purport to restrict when employees can stop the deduction of union dues from their wages,” the notice reads.
“All State of Ohio public workers must be aware that they cannot be forced into abandoning their First Amendment right to refrain from subsidizing an unwanted union hierarchy just to keep their jobs,” commented National Right to Work Foundation President Mark Mix. “Any State of Ohio public servant who is falsely told that they must sign a union dues deduction form should contact the Foundation for free legal assistance in defending their Janus rights.”
The recent settlement is not the only time Ohio public employees have with National Right to Work Foundation legal aid successfully challenged union boss attempts to limit their rights.
Seven other Ohio public employees won the first-in-the-nation victory against unconstitutional “escape periods” with Foundation aid in January 2019, after they filed a class-action federal lawsuit challenging a similar policy created by AFSCME Council 8 bosses. They won a settlement ending the restrictions for themselves and their coworkers. That win was followed by two other Ohio public workers, Connie Pennington and Donna Fizer, successfully ending “escape period” restrictions with Foundation assistance in 2019.
University of California Workers Challenge Restrictions on Janus Rights
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, May/June 2020 edition. To view other editions or to sign up for a free subscription, click here.
Class-action lawsuit targets state and union for illegally blocking dues revocations
Former presidential candidate and self-described socialist Bernie Sanders gained the endorsement of UPTE union bosses, who are saddling employees with arbitrary restrictions on their First Amendment rights.
SAN DIEGO, CA – In March, UC San Diego Health Service Desk Analysts Pablo Labarrere and Sam Doroudi filed a federal class-action lawsuit against the University Professional and Technical Employees (UPTE) union and the University of California for seizing dues from their paychecks in violation of their First Amendment rights.
With free legal aid from National Right to Work Legal Defense Foundation staff attorneys, Labarrere and Doroudi contend that the dues seized from them and their colleagues are unconstitutional under the 2018 Foundation-won Janus v. AFSCME Supreme Court decision. In Janus, the Court ruled that deducting union dues from any public sector worker’s paycheck without his or her affirmative and knowing consent breaches the First Amendment of the U.S. Constitution.
The class-action lawsuit names University of California President Janet Napolitano as a defendant for the university system’s role in perpetrating this scheme. It also names California Attorney General Xavier Becerra as a defendant for the state’s enforcement of the illegal union dues policy.
UPTE Bosses Enforce Phony Restrictions on Janus Rights
According to the lawsuit, UC San Diego Health officials made all new employees “believe that it was a condition of employment to either join the union as full members or pay forced fees as non-members” during a mandatory orientation session. New employees were given and told to sign “dues deduction authorization cards” which provided that union officials would continuously collect dues from each employee’s paycheck unless a revocation letter was sent in a 30-day window before the annual anniversary of signing the card.
According to the lawsuit, the authorization cards did not explain, as Janus requires, that public sector employees “have a First Amendment right not to subsidize the union and its speech” and that signing the card would waive those rights. Labarrere and Doroudi eventually discovered their First Amendment Janus rights independently and sent letters to UPTE officials in December 2019 demanding that dues deductions be cut off. UPTE agents rejected both requests and continued to seize dues from Labarrere’s and Doroudi’s paychecks, ostensibly because they did not submit their requests within the “escape period” created by the union bosses.
The lawsuit contends that UPTE bosses are violating Labarrere’s and Doroudi’s First Amendment Janus rights by continuing to take dues from their paychecks without ever having received their “affirmative authorization and knowing waiver” of those rights. It also argues that the 30-day “escape period” illegally restricts Labarrere and Doroudi in the exercise of their Janus rights.
The class-action lawsuit additionally seeks to stop UPTE bosses and the University of California system from enforcing the scheme against any other workers, and require UPTE officials to return all dues and fees to any employees in the workplace that had their First Amendment rights violated because of the policy.
Workers Continue to Abolish “Escape Periods” With Foundation Legal Aid
Since the Janus decision, Foundation staff attorneys have litigated at least 14 cases around the country for thousands of workers whose First Amendment Janus rights have been infringed upon with union-created “escape periods.” Six of these cases have already been settled favorably for the plaintiff employees, providing relief and refunds for them and hundreds of their coworkers, while eliminating the restrictions for tens of thousands more.
In one of those cases, Michael McCain, a math professor at a community college in Ventura County, California, fought an illegal “escape period” foisted on his workplace by American Federation of Teachers (AFT) union officials, by filing a federal lawsuit in the District Court for the Central District of California. Ultimately, instead of facing Foundation staff attorneys in court, AFT officials settled the case and paid refunds to all workers who had dues seized because of the illegal policy.
“The Supreme Court made it absolutely clear in Janus that union officials violate public workers’ First Amendment rights when they seize union dues without their consent,” observed National Right to Work Foundation Vice President Patrick Semmens. “Yet over a year and a half after the decision, California union bosses — with the assistance of state officials — continue to subject the state’s public servants to schemes that violate these rights, all to fill union coffers with more illegal dues.”
Foundation Asks Supreme Court to Hear Janus Case Again, Seeking Return of Forced Fees
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, May/June 2020 edition. To view other editions or to sign up for a free subscription, click here.
Case could set precedent for hundreds of millions of dollars in refunds to Big Labor’s victims
Mark Janus’ second Foundation-backed appeal to the Supreme Court landed the top spot on Fox News’ website. If Janus prevails again, hundreds of millions of dollars in unconstitutional union dues could be returned to public sector employees.
WASHINGTON, DC – Mark Janus is returning to the U.S. Supreme Court, this time asking the Justices to hear the continuation of Janus v. American Federation of State, County, and Municipal Employees (AFSCME), Council 31. Janus seeks repayment of the thousands of dollars in fees the union took from his paycheck in violation of his First Amendment rights. Another Supreme Court victory for Janus could set a precedent resulting in the return of hundreds of millions of dollars seized by union officials in violation of workers’ constitutional rights.
The original Janus v. AFSCME was argued successfully before the Supreme Court by veteran National Right to Work Foundation staff attorney William Messenger. In a landmark victory, the Court sided with Janus on June 27, 2018, and declared it illegal to force public employees to subsidize a union as a condition of employment. The Court recognized that compelling public workers to pay fees to a union violates their First Amendment rights.
Illinois Child Support Public Servant Intervenes in Lawsuit with Foundation Aid
As a result of Janus, more than five million public sector employees across the country are no longer required to pay union dues or fees to keep their jobs. However, Janus’ case continues as he seeks the return of the fees that AFSCME seized from his paycheck without his permission from June 27, 2018, to March 23, 2013, representing the two-year statute of limitations from the date his case started in March 2015 through the Supreme Court’s 2018 decision in his favor.
The Janus case began in February 2015, when then-newly elected Illinois Governor Bruce Rauner issued an executive order prohibiting state agencies from requiring employees who had abstained from formal union membership to pay union fees, based on a Right to Work Foundation U.S. Supreme Court victory in 2014 in another Illinois case. Rauner also filed a federal lawsuit seeking a declaratory judgment that forced union fees violate the First Amendment rights of public workers.
Staff attorneys from the Foundation, in partnership with the Illinois-based Liberty Justice Center, filed a motion for Mark Janus and two other plaintiffs to intervene in the case in March 2015, and have represented Janus ever since. The U.S. District Court for the Northern District of Illinois granted Janus’ motion to file a complaint in intervention, which allowed the suit to move forward even after the court ruled that Rauner lacked standing to pursue the lawsuit.
The Supreme Court permitted union bosses to impose forced union fees on public workers in the 1977 Abood v. Detroit Board of Education decision. However, before the Janus victory, Foundation staff attorneys secured several victories for workers which called the constitutionality of forced fees into question. In 2012, the court ruled in Knox v. SEIU that union officials must obtain affirmative consent from workers before using workers’ forced union fees for special assessments or risk infringing on their First Amendment rights. In 2014, the court ruled in Harris v. Quinn that requiring home healthcare providers who receive a subsidy from the government to pay union dues is a First Amendment violation.
Following Janus’ groundbreaking win at the Supreme Court in June 2018, Foundation attorneys continued his case in Illinois federal courts, arguing that the Supreme Court’s ruling is retroactive and that AFSCME should be required to return dues they seized unconstitutionally before the decision. In this and similar cases, union bosses have made a so-called “good faith” argument to defend their seizing of dues before Janus was issued. The U.S. Seventh Circuit Court of Appeals in Chicago ruled in 2019 that AFSCME could keep the unconstitutional dues, prompting Janus’ petition to the Supreme Court.
Hundreds of Millions of Dollars Potentially At Stake
“The Supreme Court agreed that the union taking money from non-members was wrong but the union still has the money it illegally garnished from my paycheck,” commented Janus. “It’s time for AFSCME to give me back the money they wrongfully took.”
Foundation staff attorneys are currently fighting for thousands of workers in about 20 cases which seek refunds of dues seized unconstitutionally before Janus was decided. While Janus is seeking the return of $3,000 of his own money, a favorable decision for him would set a precedent that could result in the return of over $120 million to public servants just in Foundation-backed cases. Other cases brought by workers could bring that total to hundreds of millions of dollars.
Workers Already Winning Refunds of Illegal Dues with Foundation Legal Aid
“The Supreme Court has already sided with the Foundation arguments for Mark Janus and ruled that forcing public employees to fund union activities violates the First Amendment,” said National Right to Work Foundation Vice President and Legal Director Raymond LaJeunesse. “The Supreme Court should take this case again to ensure that public sector union bosses are not permitted to profit from their widespread violation of workers’ First Amendment rights.”
Foundation staff attorneys in July 2018 secured the nation’s first-ever refund of dues seized unconstitutionally before Janus for Debora Nearman, an Oregon state wildlife employee. SEIU bosses were forced to settle and give back to Nearman over $3,000 in illegal fees they had seized from her over two years, during which they had sponsored an aggressive political campaign against her own husband, who ran successfully for the Oregon Legislature in 2016.
Rehearing in Continuation of Landmark Janus Case
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2020 edition. Foundation staff attorneys are currently asking the U.S. Supreme Court to review the continuation of Mark Janus’ case. To view other editions or to sign up for a free subscription, click here.
Union bosses refuse to return dues seized in violation of First Amendment
A favorable decision for Mark Janus at the Seventh Circuit could be the next step toward public employees getting back millions of dollars that were seized from them by union bosses in violation of their First Amendment rights.
WASHINGTON, D.C. – Mark Janus won a landmark victory for American workers in 2018 when the Supreme Court acknowledged in Janus v. American Federation of State, County, and Municipal Employees (AFSCME) Council 31 that requiring public sector workers to pay union fees as a condition of employment infringed their First Amendment rights.
However, the coffers of the AFSCME union bosses who once had monopoly bargaining power over Janus — and the coffers of countless other unions around the country — are still flush with dues money that was seized from employees without their “affirmative and knowing” consent as the decision requires.
National Right to Work Foundation staff attorneys who represent Janus, along with attorneys from the Illinois-based Liberty Justice Center, have filed a petition to the Seventh Circuit Court of Appeals for a rehearing en banc in the continuation of his case. Janus seeks a ruling that will make AFSCME union officials return thousands of dollars in dues that were taken from his paycheck in violation of Janus since March 23, 2013. If the rehearing is granted, Janus’ case will be heard before 12 judges of the Seventh Circuit.
A three-judge panel of the Seventh Circuit refused to remedy AFSCME bosses’ unconstitutional conduct last November despite the High Court’s noting in Janus that union officials have been “on notice” for years that mandatory fees likely would not comply with the heightened level of First Amendment scrutiny articulated in the 2012 Knox v. SEIU Supreme Court decision, also won by Foundation staff attorneys.
“Mark Janus is simply asking the Seventh Circuit to remedy the years of unconstitutional conduct AFSCME bosses have perpetrated at his and other public sector workers’ expense,” observed National Right to Work Foundation Vice President Patrick Semmens.
At stake for Mark Janus is over $3,000 of his money that was seized by union officials in violation of his First Amendment rights. But a ruling in his favor could have a nationwide impact, setting a federal precedent that would be cited in dozens of other cases seeking refunds of dues taken unlawfully by public sector union bosses. Foundation staff attorneys are currently litigating more than 30 Janus-related cases that collectively seek more than $120 million in refunds.
Sacramento Employee Hits Union with Charge for Ignoring Janus Rights
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2020 edition. To view other editions or to sign up for a free subscription, click here.
More than a year after Court decision, union bosses still tell workers forced fees are legal
In the Foundation-won Janus v. AFSCME decision, the Supreme Court recognized the right of all American public sector workers to refrain from subsidizing unions, but California IUOE bosses are acting as if those rights don’t exist.
SACRAMENTO, CA – Ethan Morris works for Sacramento County as a wastewater treatment employee. With free legal aid from the National Right to Work Legal Defense Foundation, he has hit the International Union of Operating Engineers (IUOE) Stationary Engineers union bosses at his workplace with charges that their misstatements of his requirement to pay union fees breach California law by disregarding workers’ First Amendment rights under the Foundation-won Janus v. AFSCME Supreme Court decision.
California’s Public Employment Relations Board (PERB), the agency in charge of determining whether unions like IUOE have violated California’s public sector labor laws, will now investigate Morris’ charge.
California Union Bosses Blatantly Lie About Legality of Forced Dues
Morris has never been a member of IUOE Stationary Engineers. He recounts in his charge that he received a notice from an IUOE financial secretary in July 2019 which claimed that “employees who do not join the Union must pay a . . . fee” to the union as a condition of employment, and that these mandatory fees are “legal and enforceable in California” through direct deductions from non-member employees’ paychecks.
Morris’ charge says the union’s fee demands ignore government employees’ First Amendment rights under the 2018 Foundation-won Janus v. AFSCME Supreme Court decision. In Janus, a majority of the Court recognized that union dues or fees cannot be mandatory for public employees and may only be deducted from government workers’ paychecks if they have given “affirmative and knowing” waivers of their First Amendment right not to subsidize a union.
Morris maintains that by ignoring Janus, IUOE Stationary Engineers bosses infringed his rights under California’s Meyers-Milias-Brown Act (MMBA). That statute provides Golden State workers “the right to refuse to join or participate in the activities of employee organizations” and prohibits unions from “coerc[ing] or discriminat[ing] against” employees for exercising that right.
IUOE Officials Broke California Labor Law by Defying Janus
Morris demands that union officials rectify the situation by stopping the illegal fee demands and posting a PERB-approved notice informing his coworkers of their right to refrain from union activities and acknowledging that compulsory fee demands violate that right.
“Ethan Morris discovered his First Amendment Janus rights independently, and in doing so was able to catch IUOE Stationary Engineers bosses in a red-handed lie about the right of public sector workers in America to abstain from financially supporting a union,” observed National Right to Work Foundation President Mark Mix. “For every worker who rebuffs illegal union threats, there are almost certainly thousands of workers who unknowingly sign away their rights.
“State governments must step up and proactively protect employees’ Janus rights, including making sure that every worker knows those rights and not deducting any union dues or fees absent a worker’s knowing and voluntary waiver of his or her rights,” Mix added.
Taking the lead on protecting public workers’ Janus rights is Alaska, where last September Gov. Mike Dunleavy issued an executive order requiring all state agencies to stop the deduction of union dues from any worker who had not submitted a form affirmatively waiving his or her right under Janus not to fund any union activities.
Featured Article: “The Future Looks Bright for the Right to Work Movement”
The Regulatory Review has ranked the essay entitled “The Future Looks Bright for the Right to Work Movement” by National Right to Work Foundation Vice President and Legal Director Raymond J. LaJeunesse, Jr. as one of the publication’s top essays in 2019.
The essay highlights successes in the ongoing fight against forced unionism through legal and legislative reform:
Thomas Jefferson famously said that it is “sinful and tyrannical” for government “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors.” That principle is consistent with the guarantees of freedom of speech and association enshrined in the U.S. Constitution’s First Amendment. Yet, some federal and state labor laws in this country have long authorized requirements that workers pay union dues as a condition of employment, requirements known as the “union shop” or “agency shop.” Increasingly, however, legislatures and courts are recognizing that workers have a constitutional right to work without being forced to subsidize a union.
Among recent achievements for the Right to Work movement are five new state Right to Work laws passed since 2012 and the landmark Foundation-won Janus v. AFSCME Supreme Court decision in June 2018.
The complete essay is available to read online here.
